BVA9501415 DOCKET NO. 93-08 204 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the residuals of asbestos exposure, to include lung cancer. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from July 1957 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Muskogee, Oklahoma, Regional Office (RO), which denied service connection for lung cancer as a residual of asbestos exposure. As a threshold matter, one claiming entitlement to VA benefits must qualify as a claimant by submitting evidence of service and character of discharge. Aguilar v. Derwinski, 2 Vet.App. 21 (1991). Once qualified, the claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded in order for the RO to carry the claim to full adjudication. 38 U.S.C.A. § 5107(a) (West 1991). "[T]he [VA] benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). The veteran has submitted excerpts from a number of publications which show that a relationship can exist between exposure to asbestos and pulmonary disorders, including lung cancer. Such evidence would justify a belief by a fair and impartial individual that his claim is plausible, therefore it is well grounded. Review of the claims file reveals that at the appellant's November 1992 personal hearing his representative raised the issue of entitlement to service connection for chronic bronchitis as a residual of exposure to asbestos. The Board believes this claim to be inextricably intertwined with the current claim. REMAND The appellant was assigned to the U.S.S. Passumpsic, and he was exposed to asbestos while performing the duties of a machinist mate and a fireman. He contends that he developed lung cancer as a residual of exposure to asbestos during military service. Review of the service medical records shows that the appellant received a diagnosis of chronic bronchitis in May 1958. His symptoms included coughing, followed by vomiting, after arising in the morning. The appellant was seen again with the same symptoms in August 1960. He reported smoking a 1/2 pack of cigarettes per day, and reported no history of sinus trouble. A physical examination of the pharynx and chest, as well as radiographs of the chest, were negative. He was prescribed Benadryl to take upon first arising. A June 1961 separation examination indicated no defects or diagnoses, and a clinical evaluation revealed normal findings for the nose, sinuses, lungs, and chest. There was no reference made to the previous diagnosis of chronic bronchitis made in May 1958. An April 1990 private medical report of operation, prepared by L. Thayer, M.D., indicated that the appellant underwent a left upper lobectomy, without difficulty, to remove a resectable lesion. The tumor was well localized to the left upper lobe apex, and there was no sign of tumor anywhere else in the hemithorax. An April 1990 private tissue report, prepared by C. A. Schweers, M.D., pathologist, indicated a diagnosis of large cell, undifferentiated, carcinoma of the bronchus, with focal, poorly differentiated, adenocarcinoma presenting as a solitary nodule in the posterior apical aspect of the upper lobe of the appellant's left lung. The appellant testified at his November 1992 personal hearing that he was exposed to asbestos in service while performing the duties of a machinist mate and a fireman. He also stated that he had been a heavy smoker up until 1985, when he quit completely. However, he did not proffer any medical evidence demonstrating that his lung cancer was caused by exposure to asbestos. In a November 1992 hearing officer decision, the hearing officer found that, while the appellant was exposed to asbestos during service, there was no medical evidence establishing the etiology of his lung cancer as exposure to asbestos. VA has a duty to assist the appellant in the development of facts pertinent to his claim, if the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). The Court has stated that the VA's statutory duty to assist includes issues raised in all documents or oral testimony submitted prior to a Board decision, not just those derived from a liberal reading of the appellant's substantive appeal, "EF" v. Derwinski, 1 Vet.App. 324 (1991). In Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court ruled that where additional issues have been raised but not certified, which are "inextricably intertwined," appellate action prior to development by the originating agency of all intertwined issues would be premature. The appellant has not been evaluated by the VA for any residuals of asbestos exposure, to include lung cancer, as required by 38 C.F.R. § 3.326 (1994). There is no medical evidence of record that addresses the etiology of his lung cancer. Therefore, this case is remanded to the RO for the following actions: 1. The appellant should be afforded an examination by a pulmonary specialist in order to allow the RO to ascertain the nature and severity of any past or present respiratory disabilities. All indicated special studies should be conducted, if not medically contraindicated. 2. The RO should specifically request that the appellant undergo a pulmonary function test that would indicate any restrictions possibly caused by the residuals of exposure to asbestos. The examiner should be requested to express an opinion as to the etiology of the appellant's lung cancer and chronic bronchitis, if present, particularly as to whether either is proximately due to or the result of his asbestos exposure in service. The claims folder and a copy of the REMAND should be made available to the examiner for review prior to the examination. 3. The RO should review the examination report to determine if it is adequate for rating purposes and in compliance with this remand. If it is not, it should be returned to the examiner for supplemental action. After the above requested actions have been completed, the RO should review the appellant's claim with regard to the additional evidence obtained. This review should include consideration of whether the appellant has any residuals of asbestos exposure, particularly lung cancer, chronic bronchitis, or pleural plaques. The RO should refer to VA Adjudication Procedure Manual, M21-1, 7.68(d)(2) (Sept. 21, 1992), for the explicit VA provisions for rating pleural plaques, if present. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional medical evidence and to ensure that the appellant receives his procedural due process rights. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).